1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL PETITION NO.12143 OF 2024 BETWEEN: MR. ADIL MUNAVER S/O MUNAVER MOHAMMED, AGED ABOUT 26 YEARS, STUDENT OF MBBS, YENOPOYA MEDICAL COLLEGE, MANGALURU, R/AT SHANGRILA HOUSE, THANA POST, KANNURU POST, KERALA STATE - 670 012. ...PETITIONER (BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR SRI. KARIAPPA N A., ADVOCATE) AND: 1 . STATE OF KARNATAKA BY ECONOMIC AND NARCOTIC CRIME POLICE STATION, MANGALURU CITY - 573 221. 2 . THE SUB-INSPECTOR OF POLICE CITY CRIME POLICE WING (CCB), MANGALURU - 573 221. (BOTH ARE REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE - 560 001) …RESPONDENTS (BY SMT. N.ANITHA GIRISH, HCGP) THIS CRL.P IS FILED U/S 482 OF CR.P.C. (FILED U/S 528 BNSS) PRAYING TO QUASH THE ENTIRE CHARGE SHEET FILED AGAINST PETITIONER BY R1 IN FIR CRIME NO.33/2021 OF ECONOMIC AND NARCOTIC CRIME POLICE STATION, MANGALURU WHICH IS PENDING IN SPL. CASE NO.64/2022 ON THE FILING OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, MANGALURU AS PER ANN-C AND F., 2 THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.02.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE K.NATARAJAN CAV ORDER This petition filed by the petitioner/accused No.4 under Section 482 of Cr.P.C. for quashing the criminal proceedings in Spl.Case No.64/2022 arising out of Crime No.33/2021 of Economic and Narcotic Crime Police Station, Mangaluru, now pending on the file of Principal District and Sessions Judge, Mangaluru. 2. Heard the learned senior counsel appearing for the petitioner and learned HCGP for the respondent/State. 3. The case of the prosecution is that, on the suo moto complaint registered by the respondent Police on 29.06.2021 alleging that on the said day @ 8 A.M. they received credible information that a parcel is coming through courier service which contain narcotic drugs for the purpose of selling to the students and a vehicle bearing No. TN-74-AW-4970 was proceeding to receive the parcel. Accordingly, a search warrant has been obtained, the police officer along with the officials were found, the said car was parked in front of the post office, where the accused No.3 by name RESERVED FOR ORDERS ON: 05.02.2025 PRONOUNCED ON : 14.02.2025 3 Meenu Rashmi sitting in the car and another person accused No.2 brought the card board box from the post office and kept inside the car. Immediately the police intercepted the car and on search and enquiry he has named as Ajmal- accused No.2 and inmate of the car is Rashmi-accused No.3, they seized the Narcotic drugs under the panchanama, as there is no license. The said lady is from Kanyakumari, Tamil Nadu and on verification the parcel contained Hydro Weed Ganja measuring 1 k.g. 236 gram valued about 1,20,000/-. The police also seized mobile phone from the accused person and it is revealed by the accused No.2, the parcel was sent by the accused No.1 and he received the same for the purpose of selling. Then he has been arrested and based upon the voluntary statement, the accused No.1 also said to be arrested. On the basis of the voluntary statement that the accused No.2 said to be informed is taking the drugs for the purpose of handing over to the present petitioner -accused No.4 and accordingly names of the petitioners impleaded. He also obtained anticipatory bail from the High Court and subsequently he has moved the petition during the crime stage for quashing, which came to be dismissed and after filing of the charge sheet once again the petitioner is before this court. 4. Learned senior counsel for the petitioner has contended that the confession statement made by the accused No.2 that too in 4 the subsequent confession statement, it was revealed the name of the petitioner, absolutely there is no connecting evidence placed by the police in the charge sheet. Even in the additional charge sheet they have stated that there is phone contact between the accused Nos.1 and 4 but the CDR does not reveals any phone belongs to the petitioner for having contacted to the accused No.1 and in the first confession statement given by the accused No.2 there is no name mentioned but in the second confession statement in the custody where he has named the accused. The confession statement made by the co-accused is not admissible in evidence. It is also contended that there is no offence committed by the petitioner. It is stated by the accused No.2 that he is going to give to the accused No.4/present petitioner and in turn they are going to sell. Still the offence is not committed by this petitioner. Therefore, there is no material placed on record to connect the accused with the crime. Hence, conducting the proceedings against this petitioner is abuse of process of law. Therefore prayed for quashing the same. 5. Per contra learned HCGP objected the petition contending that, in the additional charge sheet the police have collected phone numbers of accused Nos.1 and 2 and this petitioner for having contacted by them a day prior to the sending the parcel and seizer of the drugs. It is also reveals from the investigation this petitioner obtained the simcard of the another friend and used it for the 5 purpose of contacting the accused No.1, the CDR also produced, phone number also collected, the statement of the person who gave simcard also recorded. He was given statement that he has obtained the simcard in his name and given to the accused No.4. In turn they contacted each other. 6. The learned HCGP also contended that the name of the person is Nishanth Reddy, who gave the statement before the police for having obtained the simcard in mobile No.8861192936 which was given to this petitioner. It is also contended that from this mobile number, he has contacted the accused No.1. It is further submitted by the learned HCGP that this accused also paid the money to the accused No.1 and there was money transaction between them by online transfer, which also connect the accused with the crime. Further submitted by the learned HCGP that this accused was already caught and case was also registered against him under Section 27(B) of the NDPS Act, and he has paid fine amount by pleading guilty. He is habitual offender, receiving the ganja from the accused person and using for personal consumption and also for selling. Therefore, the matter is required for the trial. If any defence available it has to be taken in the trial but criminal proceeding cannot be quashed. Therefore, prayed for dismissing the petition. 6 7. In reply the learned senior counsel also contended that the accused No.4 borrowed some loan from the accused No.1 and the same was repaid and both are classmates in MBBS, they are friends and therefore it is contended it cannot be considered as any transaction for purchasing the drugs etc., it is only loan transaction between them. The present petitioner said to be MBBS student, they want to pursue the higher studies in abroad and the offence not at all taken place, it is only imaginary and the statement of accused No.2, there is no proximity in the crime and the accused. Hence, prayed for quashing the criminal proceedings. 8. He has also relied upon the judgment of Hon'ble Supreme Court and Co-ordinate bench. 9. Having heard the arguments and perused the records which reveals the police intercepted a car and arrested the accused Nos.2 and 3 on the spot on 29.06.2021. Of course the first confession statement in the FIR or in the panchanama the accused No.2 did not revealed the name of the petitioner at the time of arrest that this parcel handed over to the accused No.4-present petitioner. The police have registered the FIR only on the first information and seized the material in the spot from the accused Nos.2 and 3. At that time the accused No.2 was given little information and he has not named this petitioner and name of this 7 petitioner also not arrived in the FIR and during the investigation the police have recorded the confession statement of the accused, where he has opened mouth that this drugs were received on behalf of the accused No.4 and he wanted to hand over the same. And accordingly, the name of this petitioner was mentioned in the remand application and of course charge sheet also filed. Admittedly, in the first charge sheet there is no material placed on record by the police except stating there is phone conversation in CDR between the accused persons and in the additional charge sheet the police have filed the CDR i.e., call digit records to show there is connection between the accused No.1 and 2 and this petitioner. Subsequently the police officer came to the court along with the CDR and details of the account numbers of the accused as well as accused No.1 who is the present petitioner for having conversation between the accused Nos.1, 2 and 4 and many cash transactions between them. Apart from that accused No.4 obtained the simcard from some third person who is the friend of accused No.4 and used for conversation between the accused No.1 and himself. The accused No.4 cleverly not used his own telephone number or mobile number for contacting. Where as he used the mobile number of one Nishanth Reddy who has given statement on 12.02.2024 that was also studying in the same college in 2019 in July. At the request of accused No.4 -present petitioner, he has 8 obtained the simcard by presenting his Aadhar card and mobile number is 8861192936. The statement of the Nishanth Reddy reveals he is also MBBS student and the local person. Therefore, by producing his Aadhar card he obtained the simcard and given to the accused No.4. Obtaining the simcard from the Nishanth Reddy required to be rebutted by the accused in the trial and he cannot say he has not obtained it. There is a material collected by the police, this number obtained by the accused from the Nishanth Reddy -the witness. That apart there are various money transactions between them. The learned senior counsel submits that these are all loan transactions between them but this court cannot presume this amount paid towards loan etc., it has to be established by the accused in the trial by taking defence that this amount not paid for the purpose of payment for buying the drugs. Thereafter, it is also reveals from the investigation that the CDR the phone number of the accused No.1 i.e., 9902819966, the phone number of the accused No.2 i.e., 9895416197, there was continuous conversation between them, apart from that the accused No.4 who had contacted the accused No.1 on earlier day. This telephone conversation CDR reveals that there was continuous contact between them and even prior to the incident and a call after the incident also from accused Nos.1 and 4. This is the prima facie material placed on record by the prosecution for involvement of this 9 accused in the crime. That apart, this accused had already been arrested while consumption of the drugs he has been sentenced and paid fine under Section 27(B) of the NDPS Act. 10. The learned senior counsel has relied upon the judgment of Hon'ble Supreme Court in the case of in Surinder Kumar Khanna Vs Intelligence Officer, Directorate of Revenue Intelligence reported in (2018) 8 SCC 271, followed by the co- ordinate bench of this Court in respect of principle that confession of the co-accused is not admissible in evidence. In the case of Balwinder Singh (Binda) Vs NCB, reported in 2023 SCC Online Supreme Court 1213, a similar view was taken by the Hon'ble Apex Court. No other material available suggesting involvement of the accused and in absence of any substantial evidence, the Hon'ble Supreme Court has set aside the conviction. Admittedly, Section 67 of the NDPS Act, is synonymous to Sections 24 and 26 of the Indian Evidence Act, on the principles laid down by the Hon'ble Supreme Court. There is no second opinion about the principles laid down by the Hon'ble Supreme Court in MSR cases. Though case was registered on the confession statement of the co- accused No.1 and 2, subsequently, the police earthed the materials in respect of call for records between accused Nos.1 to 2 and 4 (the present petitioner). That apart, there was money transaction between accused No.1 and 4. As per the submission of the 10 petitioner's counsel, they are friends and classmates, and a day prior to the incident, there was conversation between accused Nos.1 and 4 - the present petitioner. That apart, present petitioner is already convicted as accused for the offence punishable under Section 27(b) of NDPS Act, and paid the penalty. The police produced CDR statement of the witness especially the friend of the accused No.4 - Nishanth Reddy, obtained the SIM card in his name and given to the petitioner No.4. This petitioner used the SIM card of Nishanth Reddy for contacting accused No. 2 and 4. This material connect the accused with this crime. Therefore, the material placed on record by the police is a substantial evidence apart from the confession statement which connects the accused with the crime. Therefore, the petitioner required to face the trial and take the defence to rebut the presumption available to the prosecution. Accordingly, I am of the view that this is not a fit case for quashing the criminal proceedings. Hence, I proceed to pass the following order: The petition filed by the petitioner/accused No.4 is hereby dismissed. Sd/- (K.NATARAJAN) JUDGE SRK CT:SK